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Science in the Law: Allowing Evidence to Speak More Fully to Tell the Whole Story

Posted on Thursday, December 1st, 2016 at 9:45 am    

The following post is part of our Law Student Blog Writing Project, and is authored by J. Alexander Haney, a Juris Doctor student at NKU Chase College of Law, Northern Kentucky University.

Science in the Law:

Allowing Evidence to Speak More Fully to Tell the Whole Story

science-1029385_960_720To say that the practice of law has changed with time would be a gross understatement. From its roots in English common law, to the master and apprentice model which helped shape the legal careers of Abraham Lincoln and Oliver Wendell Holmes, Jr., to the modern courtroom of technology and science, the legal profession has undergone numerous transformations. Of course, such is the nature of all fields of practice, and each field has its impact felt in varying ways by all those contemporaneous around it. Law is no different. With each medical advance, the law must adapt. With each improvement to machinery, the law must find a way to accommodate the changes. With each scientific progress, the law must discover how to best use new methods of testing to more accurately and completely bring forth the evidence in a case. There is no sign readily visible to suggest that the field of science will slow anytime soon. The opposite is likely true. Ray Kurzweil, one of the world’s leading inventors, thinkers, and futurists, wrote about the “Law of Accelerating Returns,” stating that “[W]e won’t experience 100 years of progress in the 21st century—it will be more like 20,000 years of progress (at today’s rate).” That is to say, advancements in science are not slowing down, but rather resemble an exponential curve. Iron sharpens iron, and advancements beget greater advancements. From the first flight with a wood and cloth oversized kite in 1903, to the climax of the Space Race when Man first walked across the lunar surface in 1969, was a mere sixty-six years. In 1998, the International Space Station launched, and is still in use, today. The point is that science advances by the second, and practioners of the law can ill afford to fail to keep up.

Recently, Lawrence & Associates, LLC, was faced with a case in which scientific evidence allowed us to go above and beyond what would otherwise have been a run-of-the-mill slip-and-fall case. On a particular January evening, a light layer of snow covered the ground of the parking lot outside of the grocery store. Our client, upon walking out of the store, slipped on a patch of ice, and fractured her ankle. The basics of the case are relatively simple, and do not distinguish themselves from the typical slip-and-fall. There was ice, a woman fell, and was injured. However, the lead attorney on the case, Peter A. Tripp, Esq., used the discovery period to take the case beyond what it likely would have been, otherwise.

In its case, Defendant used the legal doctrine of “open and obvious” as a mitigating factor, claiming that the ice patch was clearly visible. Defense also asserted the theory that it would be unreasonable to expect perfection in clearing the parking lot of ice, and that reasonable measures had been taken to create a safe area for customers.

The open-and-obvious doctrine simply means that a defendant’s negligence may be mitigated if the plaintiff should have reasonably been able to notice and avoid a clear hazard. Consider a sinkhole that takes up an entire parking lot, for example. One would expect to see the hazard to be blocked off, but even if it were not, a potential plaintiff could reasonably be expected to see the massive hazard, and be able to avoid it. An ice patch covered by snow is not of the grandeur of a sink hole, but it would be reasonable to expect slippery conditions in freezing temperatures and snowy weather. In order to clear the hurdle of showing that the defendant had breached its duty to Plaintiff, it was necessary to find more evidence.

Naturally, not every instance in which science has been used to make a case has turned out in favor of the party implementing some new method. Perhaps most notably, there have been numerous accounts that the DNA evidence presented in the course of the OJ Simpson trial was either too complex, or that the use of DNA evidence was just too foreign a concept at the time. The accuracy of these claims can be disputed, but the point is made, all the same. The opposite seems to be true more often than not, though. People are typically visual learners, so much so that research suggests that sight makes up 80-85% of our perception of the world around us. Juries are made up of people, which is an important fact to remember when attempting to prove one’s perspective of a case.

In today’s time, the average person is not only better versed in the understanding of scientific advancements, and more trusting of them, but is also nearly completely reliant on them. As of 2014, 91% of adults in the United States owned a cell phone. Most of these require some form of connection to the internet, placing the greatest amalgamation of information ever consolidated literally in the palm of one’s hand. Using science in the course of proving a case is not so much an exercise in convincing a jury that the science is valid, but more of a contest to see which side provides the most convincing science. In its most general definition, the prevalence of science in the courtroom may be attributed to what is colloquially known as the “CSI Effect,” though the extent to which the phenomenon has impacted the practice of law is debatable. What is not debatable is that scientific evidence plays a major role in how a jury decides a case, and that cannot be overlooked by any attorney hoping to continue to be effective.

In the aforementioned case, Defendant, a company hired to spread salt and remove snow and ice from the parking lot, had done its job insofar as it had spread salt around the parking lot. To show whether or not such action was enough to meet the level of duty it was held to, Plaintiff investigated into the proper actions, and proper use of salt which would be necessary. In short, a lot of science was used.

Salt works to melt ice by lowering the temperature at which water will freeze. It is the same principle which allows fresh water to freeze into glaciers, whereas salt water does not. It was discovered in the case that Defendant spread 23,000 pounds of rock salt throughout the parking lot, and twelve (12) bags of calcium chloride on the sidewalks of the property. The rock salt used is not uncommon in such business, and is identical to what one might find at a local hardware store. The two products work differently to achieve the same ends, but their individual effectiveness varies depending on many factors, most notably, temperature. The eutectic temperature is the point at which the freezing temperature of a solution can no longer me lowered. Normal rock salt is typically not used when pavement reaches temperatures below ten degrees Fahrenheit, as the eutectic temperature for a rock salt and water mixture is five degrees Fahrenheit.

To find these facts, and to study the example of a state well-versed in deicing, research was done into the practices of the Michigan Department of Transportation. According to archives, Michigan sees some of the coldest weather in the country during the winter months, with an average monthly snowfall during those months of just under three inches. In place of the typical sodium chloride salt, magnesium chloride is often used in colder temperatures, as its eutectic temperature is around negative twenty-eight degrees Fahrenheit at a mixture of 21.6 percent magnesium chloride to 78.4 percent water. Magnesium chloride, it was found, is not only effective at lower temperatures than is sodium chloride, but the concentration of the solution does not need to be as high to be effective, either.

Numerous studies were researched to find the information used in the case, including multiple studies comparing the effectiveness of sodium chloride and magnesium chloride in deicing. For the purposes of this article, other parts of the case are irrelevant. The important aspect is how science was used to allow the evidence presented to tell the entire story. At the beginning of the case, Plaintiff faced the challenge of proving negligence on the part of Defendant. Had Defendant simply not spread any deicing solution, the case would be open and shut, with an “open-and-obvious” breach of duty. That was not the case, though. Instead, attorneys needed more information. That information was found by investigating scientific studies conducted on the subject matter. Through science, it could be shown that simply spreading salt was not sufficient, given the circumstances. Rather, a different solution was needed, and that solution was and is one that is regularly used.

The information used to litigate the exemplar case allowed Plaintiff to go beyond the face value of the facts, and bring forth the totality of the story created by the evidence. It allowed for a better argument, a more in depth investigation, and, most importantly, a victory. Plaintiff and Defendant, though named as acting parties in the discussion of a case, work through the attorneys who represent them. According to the Model Rules of Professional Conduct, it is the responsibility of a lawyer, as advocate and representative, to “zealously assert the client’s position under the rules of the adversary system.” To meet this requirement, it is necessary for the practicing attorney to remain up to date, and to able to understand how to effectively use the field of science to their benefit, and to the benefit of their client. The importance of science in the modern legal field cannot be overstated, nor can be the obligation of every attorney to keep up. Science is a friend to the attorney, and that ally becomes more important by the day. Carl Sagan said, “Extraordinary claims require extraordinary evidence.” Science give us the tools to prove the extraordinary.



Kurzweil, “The Law of Accelerating Returns,” March 2001.

William C. Thompson, DNA Evidence in the O.J. Simpson Trial, 67 U. Colo. L. Rev. 827 (1996)



Simon A. Cole & Rachel Dioso-Villa, Csi and Its Effects: Media, Juries, and the Burden of Proof, 41 New Eng. L. Rev. 435 (2007)

Transportation Research Board. 1974. NCHRP Synthesis of Highway Practice 24: Minimizing Deicing Chemical Use. National Research Council, Washington, D.C.



Fay, L. and Shi, X. (2011). “Laboratory Investigation of Performance and Impacts of Snow and Ice Control Chemicals for Winter Road Service.” J. Cold Reg. Eng., 10.1061/(ASCE)CR.1943-5495.0000025, 89-114.

Performance and Impacts of Current Deicing and Anti-icing Products: User Perspective versus Experimental Data – Laura Fay, Kevin Volkening, Chase Gallaway, Xianming Shi – 2008

Preamble: A Lawyer’s Responsibilities, MRPC Preamble

Just the Facts (and the Conclusion) of Kentucky Retirement Systems v. Jamie Harris

Posted on Tuesday, November 22nd, 2016 at 10:07 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Linda Long, a Juris Doctor student at the NKU Salmon P. Chase College of Law.

Just the Facts (and the Conclusion) of Kentucky Retirement Systems v. Jamie Harris

gavel-judgeKentucky Retirement Systems v. Jamie Harris, is a case that is simply about a woman who tried to obtain disability benefits and was denied at every turn. This is a story about physical disabilities versus mental disabilities, and how they are treated differently sometimes. It is important to remember that Ms. Harris is a real person and her problems are very real for her and this is her battle with the legal system and her story of trying to convince the powers that be of her physical and mental disabilities.

Question to be answered

This case brings this issue to light: “Whether the Franklin Circuit Court erred in reversing the final order (that Ms. Harris was in fact disabled) of the Board of Trustees of the Kentucky Retirement Systems denying Appellee Jamie Harris’s application for disability retirement benefits.” To put it simply: was the court wrong when it denied Ms. Harris’s application for disability payments?


The facts here are on a timeline that follows Ms. Harris’s application and her attempts to convince decision makers at each level that her claims were valid. Here is a summary in bullet point form:

  • Ms. Harris initially claimed that she suffered from fibromyalgia, along with a host of mental disorders including depression
  • Ms. Harris’s job was a Student Affairs Assistant when she was diagnosed with each of her ailments
  • The Board of the Kentucky Retirement Systems decided to discount Ms. Harris’s mental disabilities; further, the Board determined that there was objective scientific evidence that she was suffering from fibromyalgia, but she was not so disabled from her illness that she could not work in her current job as a Student Affairs Assistant
  • At this point, Ms. Harris’s disability payments were denied
  • Ms. Harris then got a doctor (Dr. Samuel J. King) to write a letter stating his opinion that Ms. Harris was in fact disabled
  • However, Dr. King’s letter did not specify that Ms. Harris was disabled due only to her fibromyalgia because he was treating her for her depression and mental illnesses
  • The letter that Dr. King wrote did not help prove Ms. Harris’s ailments because it did not give enough facts that rose to the level of “Objective Medical Evidence” which is defined statutorily in KRS 61.510 (33); it reads as follows: “means reports of examinations or treatments; medical signs which are anatomical, physiological, or psychological, or psychological abnormalities that can be observed. . . “


So, Ms. Harris had a fight on her hands. She was up against the Circuit Court and she had to convince it that she was no longer able to work. Ms. Harris testified that she had neither sought treatment for, nor experienced active symptoms of, the depression she had at the time of the Circuit Court hearing. This cut against her argument. Also, there are no medical records prior to 1994 that indicated she was affected by or afflicted with depression. She faced an uphill battle. Without the objective medical facts proving her suffering, she continued to not be able to convince the Circuit Court of her disability. Ms. Harris then went to the next level and had her case heard in the Kentucky Supreme Court.


Overall, the Supreme Court of Kentucky ruled that the Board of Trustees is the ultimate body that decides if a person is disabled. It gets to interpret if Dr. King’s letter provides legitimate objective medical evidence. The Supreme Court ruled that the Circuit Court over stepped its authority. It reversed the decision of the Circuit Court and reinstated Ms. Harris’s disability.

Were These Shoes Made for Driving?

Posted on Monday, November 7th, 2016 at 10:10 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Linda Long, a Juris Doctor student at the NKU Salmon P. Chase College of Law.

Were These Shoes Made for Driving?

woman_wearing_red_flip_flopsWhen you think of appropriate driving footwear, you may think that if you’re pulled over and don’t have it that you’re in big trouble. But what is appropriate? Do we all believe a misconception about footwear and what is legal for us to wear when we’re driving? Continue reading for a closer look and to determine if your shoes were made for driving.

What the states say about appropriate driving footwear

Neither state nor federal laws expressly prohibit driving a car barefoot. However, there is a concern about how safely a driver can operate a vehicle without shoes or with the “wrong” shoes. The age old idea of “just because you can, doesn’t mean you should” is apparent in some concerns that lawmakers across the country have on this issue.

Other than driving barefoot, driving while wearing flip flops is also an area of concern with lawmakers and law enforcement in different states. For example, although there is no law against wearing flip flops, bare feet, or any other type of shoes, the Virginia DMV strongly discourages having unsafe footwear while operating a vehicle.  Virginia DMV Commissioner says, “Our customer service representatives who conduct road tests have seen flip flops and sandals come off and get stuck under the gas or brake pedal. Fortunately, we have not had any tragic situations, but that is what we are trying to prevent.”

Read more about this topic at http://blog.seattlepi.com/seattle911/2010/07/23/is-it-illegal-to-drive-barefoot-or-with-flip-flops.

In contrast, California is very lax in what it requires drivers to wear on their feet. I found it odd that California allows even motorcyclists to legally operate their bikes barefoot. California, like other states, does not recommend that motorcyclists ride this way, but as the California Highway Patrol Spokesman told the Los Angeles Times, “We obviously don’t recommend it, but there is no law against it.”

In Kentucky, it is not illegal for a driver to operate his or her car while not wearing shoes. So, Kentucky is not unique in that regard. As it applies to motorcyclists the Kentucky State Police’s website describes what appropriate gear is, and the “right gear” only includes this: an approved helmet; face or eye protection; and protective clothing.

Although there is some suggestion of what boots and shoes would make a ride on a motorcycle safer, there is still no requirement to wear shoes while riding a motorcycle or driving a car. So, are there any laws at all that would require a driver to wear shoes when operating a motor vehicle? In Ohio, driving barefoot is legal, but not recommended. https://ahcuah.wordpress.com/2014/02/27/convicted-for-barefoot-driving/

Further, the motor vehicle division in Ohio has said:
“It is legal to drive barefoot in Ohio. However, we do recommend that shoes be worn when operating a motor vehicle in our state.” http://www.lawyers-plus.com/is-it-illegal-to-drive-barefoot/

So what does all of this mean for you? It means that you are able to drive with flip flops, heels, sneakers, boots, or with no shoes at all., but every states wants you to be safe.


Writer Mark Vallet suggests:

  • Keep a pair of sneakers in the car with you
  • Put your shoes on the passenger side to prevent them from rolling under the pedals
  • Do not drive barefoot with wet feet. They are more likely to slip off the pedals
  • Never Armor-all your pedals; it makes them as slippery as ice

Long story, short? Be comfortable, but be safe out there!

What Should You Do If You Get Injured at Work?

Posted on Wednesday, October 26th, 2016 at 11:59 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Nolan Weddle, a Juris Doctor student at the University of Kentucky College of Law.

What Should You Do If You Get Injured at Work?

An injury, of any kind, often creates an incredibly stressful and trying time for everyone involved. The pressures are further compounded, however, when the injury is work-related and interferes with our ability to provide for ourselves and for our loved ones. Thankfully, the Kentucky Legislature has enacted a series of laws aimed at helping hard-working employees recover from injuries and diseases incurred while on the job. At its core, Kentucky’s Workers’ Compensation laws require employers to either provide Workers’ Compensation insurance or to become self-insured, so that an injured employee or a deceased employee’s dependents can be compensated for lost earnings, medical expenses, and rehabilitation expenses. In almost every circumstance, the injured employee is entitled to recover from a work-related injury—even if the injury is the fault of the employee (see footnote for exceptions). Furthermore, it is illegal for an employer to prevent his or her employee from taking full advantage of the employee’s rights, or to harass or punish the employee for filing a Workers’ Compensation claim. In order for an employee to make the most of his or her rights following a work-related injury or disease, he or she should commit to the actions discussed below.

Seeing a Physician

In the event that an employee’s injuries require immediate medical attention, the employee should seek out the nearest emergency facility. In the vast majority of circumstances, however, an employee’s injuries will not require such immediate care. When this is the case, the employee should first check with his or her employer to determine if the employer is part of an authorized managed care program that requires the employee to choose a particular physician or to choose from a list of pre-selected physicians.

There will be times when an injured employee will be dissatisfied with the medical opinion given by a physician within the above stated program. If this occurs, the employee should consider a second opinion from a physician of his or her own choosing. Filing a Form 113, provided on the Department of Workers’ Claims website, allows the employee to designate his own physician, and the Workers’ Compensation insurance carrier should provide payment to the new physician for reasonable and related treatment, so long as the new physician is either within the carrier’s managed care network or within a reasonable distance of the employee’s home.

The doctor’s orders should not be viewed by the employee as merely a suggestion. Rather, the injured employee should take great care in following the recommendations given to him or her by the attending physician. Often, these recommendations will include instructions for the employee to refrain from engaging in certain work-related activities. If this is indeed the situation, the employee should have the physician write down his or her instructions so that the orders can be given to the employee’s employer.

Report the Injury

Once the injured employee has provided for all of his or her immediate medical needs, the employee should report the injury to his or her supervisor. This report should include the employee’s name, department of employment, a list of the individuals who witnessed the injury, a description of the work the employee was undertaking at the time of the injury, the cause and extent of the injury, and any additional information the employee deems to be relevant. Too often employees fail to report injuries because the injury seems insignificant at the time the injury was inflicted. Yet unfortunately some of the most serious and life altering ailments do not manifest themselves until months or even years after the injury occurred. The problem with waiting to report an injury is that, if the employee waits too long, he or she may find that the law prevents the employee from being compensated for his or her injury or disease.

In Kentucky, an injured employee is not eligible for the benefits of worker’s compensation unless the employee reports the accident to his or her employer “as soon as practicable” and submits a claim for compensation (discussed at greater length below) within two years of the injury’s occurrence. While the two-year time period provides a bright-line rule for submitting the claim for compensation, Kentucky courts have been less clear about how soon is “as soon as practicable.” Although “as soon as practicable” does not mean that the employee must provide his or her employer with notice on the same day of the accident, courts have found that five months is too long to wait. Ultimately, because what amounts to “as soon as practicable” depends upon the unique facts of each case, the employee should report any accident to his or her employer as soon as the employee can, and the employee should do so regardless of whether he or she believes the injury is serious or not. Waiting to report the accident until all of the consequences of the injury are fully known may result in the passage of too much time and the employee’s loss of his or her benefits.

Keep On-Going Records

Although the process of applying for worker’s compensation will generate a great deal of paperwork, it is always wise for the injured employee to keep a detailed account of events for his or her own records. Included in the account should be a timeline of events, significant contacts with anyone involved in the injury, doctor’s appointments and doctor’s recommendations, interactions with the employee’s supervisors and employer, and any other significant event. In situations such as this, a detailed record of events can be critical in proving the injured employee’s right to certain benefits.

Final Thoughts

Although a work-related injury is never a welcomed event, Kentucky’s Workers’ Compensation laws do provide injured employees with a number of rights in the event of an accident. However, in order to benefit from all of the rights that an employee is entitled to, it is important that the employee take the necessary steps following his or her injury. It is only then that the injured employee can maximize all of the rights that he or she is entitled to under the law.

Additional Links

What to Do After an Accident at Work

Filing a Workers’ Compensation Claim – Kentucky

Kentucky Workers’ Comp Claims: Eligibility, Filing and Appeals

Two exceptions to this general rule are (1) when the employee intended to injure himself or herself or (2) when the injury occurred as a result of the employee ingesting intoxicating substances without a doctor’s prescription. 

Charles Clark v. W & M Kraft, Inc

Posted on Friday, September 30th, 2016 at 10:32 am    

Follow this link to read a 2007 decision in which Justin Lawrence successfully argued that his client, an employee of Consolidated Grain and Barge (CGB) qualified as a seaman under the law. Justin Lawrence also argued that W & M Kraft (corporation from South Carolina that provided safety consulting services to CGB) be held responsible for failing to make general safety recommendations in which would have protected Mr. Lawrence’s client at the time of accident. The client fell from a cell tower and onto a barge while working for CGB on the banks of the Ohio River.

Just another reason why Lawrence & Associates is always Working Hard for the Working Class. Follow the link for more details.

Kentucky and Ohio – What Can You Present As Medical Damages To A Jury?

Posted on Tuesday, September 20th, 2016 at 1:08 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Mark Ashley Hatfield, a Juris Doctor student at the University of Kentucky College of Law.

Kentucky and Ohio – What Can You Present As Medical Damages To A Jury?

medical-billsAnyone who has suffered, or has had a family member suffer, a significant injury has most likely had to make a trip to the hospital. If you are anything like me and my family, you are beyond grateful for the care, but less appreciative of the mail you receive from the hospital weeks after your discharge. You know what I am talking about… Bills. Paying a hospital bill often requires calling the hospital and dealing with an automated answering machine for five minutes, and then speaking with a representative who explains to you why your bill is so high. Needless to say it is not all that fun. However, in many cases, the amount of your bill will decrease after your insurance covers its portion, or the hospital may offer a discount on the original amount if you pay in-full or pay it off before a certain deadline.

In an ordinary situation, the discounts mentioned in the last sentence are very desirable. You are out of pocket less money, and you still benefit from the treatment. The situation gets a bit stickier in the extraordinary cases where your injury involves a third-party (i.e., a drunk driver crashes into you or a doctor makes a harmful mistake in your surgery). Who is responsible for those losses? More importantly, what losses are they responsible for? Is the tortfeasor (the drunk driver and the doctor above) on the line for the amount of medical charges originally billed to you, or is he only liable to you in the amount of the bills you actually paid after discounts and insurance coverage?

This answer will often depend on what evidence you are allowed to present to the jury. In Kentucky and Ohio, the evidence you are allowed to present to a jury is quite different, and thus, will produce quite different results. This article will examine a case from each jurisdiction to explain the competing theories of thought in this area. I will also discuss fairness and share with you my opinion on which method is best for which party.

First, I will begin with the Kentucky case, Baptist Healthcare Systems, Inc. v. Golda H. Miller. This case was decided in 2005, a year earlier than the Ohio case we will discuss momentarily. In this case, Ms. Miller, an 80-year-old woman, had gone to the hospital to have her blood drawn. The phlebotomist placed a tourniquet on Ms. Miller’s arm, but was interrupted by a phone call shortly thereafter. Attending to the phone call, the phlebotomist drawing Ms. Miller’s blood left her without supervision for approximately 10-minutes. Because of this incident, Ms. Miller subsequently experienced medical complications with the arm and sought treatment. Ultimately, after seeing several doctors, it was concluded that Ms. Miller was suffering from nerve damage.

Ms. Miller then filed a negligence claim seeking damages from Central Baptist Hospital. Here is where it gets a bit complicated. At trial, Ms. Miller was awarded $22,100 for medical expenses after seeking $40,922.08 (some of the difference was deducted because the court found Ms. Miller partially at fault for not removing the tourniquet herself). The doctor billed $31,840 for the treatment, but only received $3,356.38 from Medicare. It is the hospitals position that Ms. Miller should only be entitled to recover what she (in this case her insurance, Medicare) was required to pay – $3,356.38. The Kentucky Supreme Court, citing the collateral source rule, did not buy into this argument.

The collateral source rule, put simply, allows a plaintiff (Ms. Miller) to (1) seek recovery for the reasonable value of medical services for an injury, and (2) seek recovery for the reasonable value of medical services without consideration of insurance payments made to the injured party. Central Baptist argued, in light of this rule, it should be allowed to present to the jury the evidence that Medicare had contracted for its services at a lower rate, and thus, Ms. Miller only had to pay a small portion of the actual amount billed for the services she received. This would have likely influenced the jury to lessen the amount awarded to Ms. Miller, and the court was not favorable of that position.

Now, taking a trip across the Ohio River into Ohio, we reach a somewhat different result. Robinson v. Bates, as mentioned earlier, was decided in 2006, a year after the Kentucky case and involved a landlord-tenant personal injury issue. Ms. Robinson, who rented an apartment from Ms. Bates, fell in the driveway of the residence and broke a bone in her foot. Only days before the accident occurred, Ms. Bates (the landlord) had hired a contractor to do some work around the residence, and Ms. Robinson’s fall was directly attributable to some work that had been completed. Subsequently, Ms. Robinson sued Ms. Bates for personal injury. Ms. Robinson proffered her medical bills of $1,919 at trial, and also stipulated that her insurance had negotiated the amount of $1,350.43 as payment in full. In refusing to admit the original bills, the trial court limited Ms. Robinson’s proof of damages to the amount she was actually required to pay. This decision, however, was reversed at the appellate level.

After making its way through the court system, the Ohio Supreme Court held that both the original medical bill rendered and the amount accepted as full payment for medical services should have been admitted to the jury. The Ohio court, similar to the Kentucky Supreme Court, discusses the collateral source rule, but does so in a more limited manner. The Ohio court believes that all evidence (both the original bill and the amount accepted as payment in full) is relevant and that the reasonable value of medical services “is a matter for the jury to determine.”

The Ohio case expounds on this quite a bit, but the collateral source rule, a big issue in both of these cases, is met with varying interpretations across different states. In this article, the conclusions show that the evidence presentable to juries in Kentucky is more beneficial to the claimant. By limiting the evidence to the original amount billed, the claimant will always be able to seek a higher amount of damages. In Ohio, the admission of the original amount billed and the amount accepted as payment in full, leaving the damages question up to a jury; a situation that could lead to a wide-variety of damage results.

Put into an example, in Kentucky, if the hospital bills the injured party for $100,000, the injured party can present that evidence to a jury (without the amount actually paid being presented) and seek that amount as damages. This bodes very well for the injured party because a portion of that bill may have already been covered by insurance or greatly reduced by the hospital. Adversely, Ohio allows both the original bill (in our above example, $100,000) AND the amount actually paid, let’s say $50,000 (assuming the injured party’s insurance covered half of the original bill). The jury is then allowed to use reasonable discretion in determining what damages the plaintiff will be awarded; they may decide upon the original bill amount ($100,000), the amount paid ($50,000), or somewhere in between.

Both states have their respective rationales for ruling as they have. Kentucky seeks to protect the injured parties’ right to recover the full amount of damages (original bill as the KY courts see it), essentially encouraging the public to have adequate health insurance by rewarding the injured parties’ choice of healthcare or employment. Ohio, however, with the same purpose in mind, allows the original bill and the amount actually paid to come in as evidence. This approach, I believe, is more fair to all parties involved. I take this position because it prevents injured parties from obtaining double damages. Double damages would occur when the injured party’s bill has been reduced to $50,000, but the tortfeasor is still on the hook for $100,000 (what would happen in Kentucky). Obviously as a plaintiff we would all love that outcome, but in a system where we strive for “justice for all,” it is hardly fair to make the tortfeasor cover damages that have already been paid by insurance or will never be paid because the amount was forgiven by the hospital.

Additionally, the Ohio approach is not guaranteeing that the injured party will receive less than he or she would under the Kentucky approach; it simply allows the jury to take all relevant evidence into account when calculating damages. The injured party, upon receiving a favorable decision, will always receive, at a minimum, the amount he or she has spent on medical bills. In extremely egregious cases, the jury will likely be compelled to award the injured party the maximum amount they can (the amount of the original bill). In less egregious cases, the jury will have the option of lessening the damages to the amount actually paid by the injured party or some amount in between. When looking at the problem from both perspectives, I believe the Ohio approach produces the fairest results, and those are the types of outcomes our justice system was designed to produce.

Addendum from Lawrence & Associates:
Lawrence & Associates’ law student blog writing program is an independent program designed to foster discussion among students and to prepare students to discuss legal issues with their clients. It is truly independent, in that we don’t tell our students what to write or how to think about an issue. Because of that, we sometimes disagree vehemently with our students’ opinions while recognizing our collective right to disagree, and applauding them for staking a position on a contentious issue. This is one of those times.

Lawrence & Associates disagrees that the Ohio rule is “fairer” as set forth above. There are many things a jury doesn’t get to hear, and that includes any discussion of the history of an injured plaintiff’s dealings with his or her own health insurance policy, or who bears the cost of recovering medical damages in the civil justice system. It is this kind of half-truth that our forefathers chose to combat when they designed the collateral source rule. When properly applied, the collateral source rule limits the information presented at trial to what is relevant to determine the total amount of damages, while allowing the judge to apply additional rules passed by the legislature that dictate how complex systems like the laws affecting insurance subrogation should affect the jury’s verdict. Unfortunately, the Ohio courts’ abandonment of the time honored collateral source rule makes a false showing of “fairness” by giving juries partial information to affect their decision.

For example, the Ohio rule allows in evidence of the health insurance payment toward medical bills, but not evidence about the years of premiums the injured plaintiff paid to get that health insurance. Wouldn’t you, in the shoes of a juror, like to know that an injured plaintiff paid twenty years of premiums, totaling thousands of dollars, in order to get the reduced medical bill presented at trial? Failing to allow this evidence into court when allowing evidence of the reduced bills payment gives the negligent person the benefit of the bargain between the injured plaintiff and his or her insurance company. Essentially, the Ohio rule allows a negligent person, such as a drunk driver, to leverage the premiums paid by the innocent, not-at-fault party to reduce the amount the negligent person has to pay due to his or her own negligence. Why do the innocent, injured plaintiff’s premium payments serve to reduce the negligent person’s liability? Why don’t those premiums go to the benefit of the person that paid them?

Further, health insurance companies are harmed by the Ohio rule because the civil justice system allows them to benefit from Plaintiffs’ lawsuits against negligent people. Plaintiffs bear the cost and burden of recovering medical bills at trial. If Plaintiffs are functionally unable to recover money in excess of what needs to be turned over to the medical provider, what is that injured person’s incentive to recover those medical bills? Remember that medical bills do not have to be mentioned at trial, and they have already been paid by the injured Plaintiff’s health insurance. Why should the Plaintiff shoulder the sole cost and burden of recovering money that belongs to someone else if there is no benefit to the Plaintiff? The answer is that many don’t, and as a result the health insurance company cannot get reimbursed for medical costs that the negligent person or company would otherwise have been responsible for.

Because of these issues, both the Plaintiffs and their health insurance carriers see lower recoveries from negligent people in Ohio than in Kentucky. Negligent people and/or their liability carriers win under the rule, but plaintiffs, medical providers, and health insurance companies lose. We should not encourage a system that rewards only those that hurt someone, but punishes the injured and their doctors. As a result, Lawrence & Associates believes Kentucky’s damages rule is fairer – and perhaps more importantly, more suited to the way modern healthcare works – than the Ohio rule.

When a Civil Defendant Files for Bankruptcy

Posted on Monday, September 12th, 2016 at 10:09 pm    

Justin Lawrence wrote this article to teach other attorneys how to handle a personal injury case, such as a car accident or a slip-and-fall, when the defendant in the case files for bankruptcy.  If you have a personal injury or workers’ compensation claim, the case law and advice in this article can help you navigate the minefield that this situation creates – if and only if you are certain you fully understand the terminology and statutory law underlying the case decisions.

If you have any questions about how to pursue a personal injury or workers’ compensation claim when the responsible party is in bankruptcy, or how to navigate such a claim when you have to file bankruptcy, please give us a call.  We’re Working Hard for the Working Class, and we would like to help you!

Suing a Tortfeasor in Bankruptcy for Insurance Proceeds

Turner v. Midland Decision

Posted on Thursday, September 8th, 2016 at 10:13 pm    

Follow the link to read an important published decision by the Eastern District of Kentucky federal court, in which Justin Lawrence successfully argued that his admiralty client, a Jones Act Seaman working on the Ohio River, was entitled to proceed to a trial by jury on all his claims for damages.  Lawrence & Associates later settled the claim for a confidential amount.

Turner v. Midland

Thanks to Westlaw, a Thompson Reuters company that helps attorneys perform legal research, for providing this document.  Attorneys can find out more about Westlaw by following the link to their website.

How Can Lawrence & Associates Help Me If Another Lawyer Drops My Disability Claim?

Posted on Tuesday, August 30th, 2016 at 3:10 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by James Haney, a Juris Doctor student at NKU Chase College of Law, Northern Kentucky University.

It is always interesting when seemingly unrelated topics can be brought together to make a point, through some less than obvious comparison. With that in mind, consider the free agency period in any sport. For those unfamiliar, this is the time during the offseason in which teams make offers to players who are no longer under contract in order to entice the player to come play for them. With millions of dollars on the table for the player, and even more on the line when considering the success of the team, finding the right match is important. A team wants a player who will add not only talent to the team, but also work ethic, tenacity, teamwork, and a desire to win. The player is looking to join a team for the right price, as well as putting themselves in the best position to succeed.

Choosing your lawyer is no different.

Attorneys are often seen somewhat as lawyers first, and people second. That is to say, aside from the few famous names, most attorneys are seen as being comparable, if not the same, as any other. Any old name will do. Like with any profession, though, this is far from the case. In choosing a lawyer, one is hiring someone in whose hands they will place their very life. This becomes of great issue, very specifically, during claims for Social Security.

medical-781422_640As with any legal process, requesting Social Security consideration is a lengthy and labor intensive process. This is particularly true if an applicant has been denied at both the initial applications, as well as the Request for Consideration phases. Once denied at both levels, a claimant must begin a hearing with an Administrative Law Judge (ALJ). In Cincinnati, the regional office in this area, the average wait time from request to hearing is something around twenty (20) months. For a person in need of Social Security, twenty months is a very long time.

Unfortunately, attorneys will sometimes drop clients during this time. This can even happen within only a few months of the hearing.

The hearing stage is the most complex and time consuming for an attorney. After years of filling in forms and sending records, the attorney must now know a claimant’s records inside and out and begin to apply solid statutory and case law to the issues. A good attorney will write detailed briefs on behalf of the client, outlining the facts of the case, and steering the narrative for the judge in a favorable direction, acting as the chief representative of the client in a time of great uncertainty and stress.

Regardless of how strong or weak a case may be, an attorney may deem that the time and effort required during the hearing phase does not balance out with the potential benefit. This is not necessarily due to any issues with the attorney, the case, or the client, but is rather, more often, a result of the culmination of various factors between the three.

Due to the rigorous nature of the field of Social Security Disability, it is very important to choose an attorney who practices in the field regularly, as opposed to one who handles the odd case here and there on the side. An attorney whose focus is in the area is much more likely to see the entire process through, as they will be familiar with the system, and prepared for any eventuality that may arise.

Think of it from a personal perspective: are you more likely to do well in something you know and are passionate about, or in something you were assigned off the reservation by your boss whom you already aren’t particularly fond of? This becomes even more true if the process becomes more complex than originally anticipated.

In the unfortunate event that your attorney drops you during the hearing phase, it is of utmost importance to act quickly, as whomever replaces your previous attorney will have a lot of catching up to do, but only a little time to do it. Contact a new disability attorney immediately, and secure representation.

It is also important to not allow Social Security representatives to set a hearing for you during a period when you do not have representation. When Social Security calls to schedule a hearing, if you are at the time without representation by an attorney, you should do one of two things: 1) ask them to schedule for several months out, or 2) refuse to schedule until you have attained representation.

If you are already scheduled for a hearing when your attorney drops you and you do not have time to find a new attorney, go to the hearing and immediately explain the situation to the judge. If the judge is made aware, in a timely manner, that you do not feel capable of representing yourself, and that you need more time to obtain representation, they are almost certain to grant your request. Remember, the judge is there to ensure that the legal system is upheld correctly, and that justice is sought. It would be considered unjust by most to deny a person an opportunity to be represented in such a tumultuous time.

When you finally meet with your new attorney, it is important to get them up to speed as quickly as possible. Be sure to explain that a hearing could be imminent so they will be able to take the necessary steps. Your new attorney will get access to your Social Security file promptly and begin preparing for the hearing. It is always a good idea to get your medical records straightened out, as well. The easier your attorney’s job is, the more likely you are to win.

An attorney and the client are a team; they come together with a common goal, in order to be successful. Such is the case with any team, working together is highly important. Choose your team wisely, and be a good teammate. Doing that will set you both up for the best chance of success.

Am I Covered Under Ohio’s Workers’ Compensation Code?

Posted on Wednesday, August 24th, 2016 at 9:20 am    

If you were injured on the job while working in Ohio, you are probably covered under Ohio’s Workers’ Compensation Code. Here are the things that Ohio Revised Code 4123 requires injured workers to prove to have their claim allowed:

  1. That you were actually employed by the company you are filing a claim against at the time you were hurt;
  2. That the injury arose out of the course of employment, and;
  3. That the injury was accidental in character and result.

Employers have the right to dispute any of these elements, and this can create complex legal obstacles for an injured worker to navigate. This is why it is important to find an attorney who can guide you through the Ohio worker’s compensation process to ensure your claim is allowed and you receive the benefits you are entitled to.

How Could My Employer Challenge My Claim?

Examples of common challenges employers may bring in their attempt to get a claim denied include the following:

  1. Employers may assert that an injured worker is not in fact an employee. This challenge often comes into play in cases of independent contractors, temps, labor leasing and interns. Both statutory and case law are complex in this area, and the classification is not always cut and dry. Therefore, if you employer is claiming that you are not an employee, you should seek out an experienced attorney who can help you decipher if you are entitled to worker’s compensation benefits and who knows how to advocate for your rights.
  2. Employers might argue that an injury did not arise out of the employment. Common scenarios in which this argument might be raised are when there is a toxic exposure over a long period of time at a work place, when there is an injury resulting from a repetitive motion brought on by work places duties which did not have a specific onset date, or heart attacks that occur while on the workplace premises. While some of these instances may result in denial of a claim, the validity of such a claim should not be discounted automatically. Several details must be taken into consideration in each of these instances, and attention to various factors could mean the difference between a claim being allowed or denied.
  3. Ohio law states that employers are not permitted to pass blame on the injured worker for the workplace injury because Ohio is a no fault state. If an employer is asserting that a claim should not be allowed due to an injured workers lack of common sense, failure to follow work rules, inattention to details or other similar careless actions, that injured worker needs to find an Ohio attorney who is familiar with the Ohio no-fault system to advocate for their rights and prevent them from failing receive the benefits they deserve under such a no-fault system.

Ohio worker’s compensation law is complex and the process of getting your Ohio worker’s compensation claim allowed can be difficult and stressful. Employers are only looking out for their own interests and have their own attorneys working to save them time and money. As an injured worker you need an experienced Ohio attorney in your corner to make sure you claim is not wrongfully denied.

What Can You Do To Protect Your Workers’ Compensation Rights Under Ohio Law?

The Ohio Bureau of Workers’ Claims has a handy handbook for injured workers that will outline many of your rights for you. There is also an ombudsman employed by the BWC that is tasked with attempting to resolve disputes related to the procedural requirements of filing a Workers’ Compensation claim.

However, the only way to get true representation in this system is to hire an attorney, as referenced above. Attorneys are paid by contingency fee, so you do not have to spend money out of pocket, and attorneys have an ethical duty to represent you to the fullest of their ability. If you would like to speak to an attorney about the specifics of your claim, call Lawrence & Associates today for a free consultation. We’re Working Hard for the Working Class, and we can help you!

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